United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
a county jail inmate proceeding pro se, has filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
together with a request to proceed in forma pauperis.
of the affidavit reveals petitioner is unable to afford the
costs of this action. Accordingly, leave to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
claims that he was prematurely listed on the Megan's
website without his permission and without being notified.
Petitioner alleges that he was “only to be put on the
Megan's Law website after he paroled and able to file for
registry, due to being incarcerated for a felony sex
crime.” (ECF No. 1 at 5.) Petitioner further claims
that the Megan's Law website states he is not cooperating
with parole and has absconded parole, despite petitioner
being in continuous custody since July of 2011. (ECF No. 1 at
7.) Petitioner states that at least one major Facebook
account has negatively targeted petitioner as a result of the
listing, and the website's defamation of petitioner's
character has impinged on several relationships. Petitioner
avers that the Megan's Law website is a government-run
internet website. Petitioner seeks an order removing him from
the Megan's Law website, and money damages.
fails to state a cognizable habeas claim. As a general rule,
a claim that challenges the fact or duration of a
prisoner's confinement should be addressed by filing a
habeas corpus petition, while a claim that challenges the
conditions of confinement should be addressed by filing a
civil rights action. See Wolff v. McDonnell, 418
U.S. 539, 554 (1974); Preiser v. Rodriguez, 411 U.S.
475, 499-500 (1973); Ramirez v. Galaza, 334 F.3d
850, 858-859 (9th Cir. 2003), cert. denied, 541 U.S.
1063 (2004). Moreover, money damages are unavailable through
addition, petitioner failed to name a proper respondent. The
“Megan's Law Website, ” is not a person and
does not have custody of petitioner. 28 foll. U.S.C. § 2254
Rule 2(a). Typically, a proper respondent is the warden of
the facility in which the petitioner is incarcerated.
Brittingham v. United States, 982 F.2d 378, 379 (9th
of these reasons, petitioner cannot state a cognizable habeas
claim based on his allegations, and his petition should be
dismissed without leave to amend.
the undersigned declines to construe the habeas petition as a
civil rights action for the following reasons.
it is unclear petitioner can state a cognizable civil rights
claim based on the instant allegations. In Doe v.
Harris, 57 Cal.4th 64, 158 Cal.Rptr.3d 290 (July 1,
2013), the California Supreme Court, in response to a
certified question from the Ninth Circuit, held that “a
plea agreement's reference to a statutory consequence
attending a conviction . . . does not give rise to an implied
promise that the defendant, by pleading guilty or nolo
contendere, will be unaffected by a change in the law.”
Id. at 73. The plea agreement in Doe v.
Harris required the defendant to register as a sex
offender and the law in effect at the time the plea was
entered provided that a registrant's identity would not
be available for public inspection. Subsequently, the law
changed (“Megan's Law”) to expressly mandate
public notification provisions which “‘are
applicable to every person . . . without regard to when his .
. . crimes were committed or his . . . duty to register . . .
arose . . ..'” Doe v. Harris, 57 Cal.4th
at 67-68. In holding that the public notification provisions
were retroactive and applicable to the conviction, the court
noted that “neither the parties plea negotiations, nor
the change of plea form, nor the plea agreement considered or
addressed the possibility” of the impact of future
legislation on the registration requirement. Id. at
68. Here, petitioner was convicted of a violation of
California Penal Code § 288, subd. (a), pursuant to his
no contest plea based on a plea agreement entered in
Sacramento County Superior Court, No. 11F5641, and the
judgment of conviction was affirmed by the state appellate
court on November 21, 2012. People v. Rood, C071357,
2012 WL 5871451 (Third District Ct. Appeal). Thus, it appears
petitioner's conviction for a sex offense gave rise to a
duty to register petitioner on the Megan's Law website.
a claim of defamation does not rise to the level of a federal
constitutional violation. See Paul v. Davis, 424
U.S. 693, 699-701 (1976) (holding defamation is not
actionable under § 1983); Hernandez v. Johnson,
833 F.2d 1316, 1319 (9th Cir. 1987) (holding that libel and
slander claims are precluded by Paul); Whatley
v. Gray, 2018 WL 828200, at *2 (S.D. Cal. Feb. 8, 2018);
Sadler v. Dutton, 2017 WL 3217119, at *6 (D. Mont.
June 1, 2017), report and recommendation adopted, 2017 WL
3219479 (D. Mont. July 28, 2017). Allegations of harassment
are not cognizable under section 1983. Franklin v.
Oregon, 662 F.2d 1337, 1344 (9th Cir. 1982) (allegations
of harassment with regards to medical problems not
cognizable); Ellingburg v. Lucas, 518 F.2d 1196,
1197 (8th Cir. 1975) (Arkansas state prisoner does not have
cause of action under § 1983 for being called obscene
name by prison employee); Batton v. North Carolina,
501 F.Supp. 1173, 1180 (E.D. N.C. 1980) (mere verbal abuse by
prison officials does not state claim under § 1983).
the “Megan's Law Website” also cannot be sued
under 42 U.S.C. § 1983 because a website is not a
even if petitioner is granted leave to proceed in forma
pauperis in a civil rights action, he will be required to pay
the $350.00 court filing fee, although he is allowed to pay
it through installments from his inmate trust account.
See 28 U.S.C. §§ 1914(a), 1915(a).
28 U.S.C. § 1915(g) provides that if a prisoner brings
three actions or appeals that have been dismissed as
frivolous, malicious, or for failure to state a claim, he
will not be permitted to file a new civil action or appeal
unless he is under imminent danger of serious physical
injury. Id. ...